Customs, traditions have to pass legal and constitutional test as well: SC

New Delhi, July 26 The Supreme Court on Tuesday stressed that customs and traditions have to pass a legal and constitutional test, telling Tamil Nadu which held 'Jallikattu' (bull fighting) was a 5,000-year-old sport and should not be stopped for being allegedly cruel to the bull, that child marriage was also an age-old tradition before it was outlawed.

As senior counsel Shekhar Naphade, appearing for Tamil Nadu, said that Jallikattu was 5,000-year-old tradition, the bench of Justice Dipak Misra and Justice Rohinton Fali Nariman said that in 1999 about 12,000 child marriages took place in which the girls were under 12 years of age.

As the court indicated that not everything in the name of age-old tradition or ancient practices would be allowed to continue without being tested on the touchstone of prevailing laws, Naphade said: "Custom has to be reasonable."

"Whether these kind (Jallikattu) of sports are permitted under the law or not," said the bench, pointing out that first they have to pass statutory test and ultimately the constitutional tests.

"You convince that judgment (of May 7, 2014) is wrong. If my learned brother (Justice Nariman) agrees and I am bit convinced we will refer it to a larger bench," Justice Misra told Naphade.

The top court by its May 7, 2014 order had banned Jallikattu, saying that bulls could not be used as performing animals, either for Jallikattu events or bullock-cart races.

Holding that all these events per se violated the Prevention of Cruelty against Animals Act, the apex court had said: "Parliament, it is expected, would elevate rights of animals to that of constitutional rights, as done by many of the countries around the world, so as to protect their dignity and honour."

As court fixed August 30 as next date of hearing of the pleas seeking the junking of January 7, 2016 notification permitting use of bulls for Jallikattu and cart race, the central governmentcited Mahabharata and Lord Krishna to tell the Supreme Court that Jallikauutu was an ancient sport that is conducted in Tamil Nadu during Pongal festival as it urged the court to lift the stay on the Environment Ministry's January 7 notification paving way for Jallikattu and cart-races.

"The fact that Jallikattu is an ancient sport, emphasis must be laid on Mahabarata. The epic cites Lord Krishna controlling a violent bull in the atrium of King Kamsa's palace," the government said in its affidavit filed on Tuesday.

Seeking the restoration of January 7, 2016 notification by the Ministry of Environment and Forest which was put on hold by the top court on January 12, it referred to another chapter of Mahabharata linking Lord Krishna with a bullfight to marry Princess Naganajiti.

Lord Krishna, the affidavit, says tamed "seven bulls to merry Princess Naganajiti, daughter of King Nagnajit of Kosala Kingdom which latter prospered into a tradition in the Velir Kingdom of Tamil Nadu".

The tradition of taming a bull to marry "was observed as a Yadava festival where a Yadava boy had to prove his mettle by fighting a bull to marry a Yadava girl", the affidavit said.

The court is hearing a batch of petitions by NGOs Compassion Unlimited Plus Action, the Animal Welfare Board of India, animal right activist Gauri Maulekhi, People for Ethical Treatment of Animals India and Federation of Indian Animal Protection Organisations, challenging the notification.

IANS